IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In re: Nomination Petition of
Barack Obama
In re: Nomination Petition of
Patrick Meehan
Objection of: James D. Schneller
No.: 75 M.D. 2012
ORDER
AND NOW, this __ day of ______ , upon consideration of the Motion to
Strike and Dismiss of Candidate President Barack Obama, and of the submissions of the parties
relating thereto, it is hereby ORDERED that said Motion is GRANTED. Objector's Petition is
hereby DISMISSED WITH PREJUDICE. Costs are awarded in favor of Candidate and against
Objectors in an amount to be determined. Candidate is directed to submit evidence of costs
incurred pursuant to Section 977 of the Election Code within fourteen (14) days of the date of
this Order.
BY THE COURT:
OB1I69192788.1
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, -
IN THE COMMONWEALTH COURT OF PENNSYL VANIA
In re: Nomination Petition of
Barack Obama
In re: Nomination Petition of
Patrick Meehan
Objection of: James D. Schneller
No.: 75 M.D. 2012
......

,.,., "U 0 __ _
MOTION TO STRIKE AND DISMISS OF PRESIDENT BARACK
K) 2:"";- -, :
C) U) - 'r'
Candidate President Barack Obama hereby moves to strike and dismiss the
- » < ....... -
» ....... ,
James D. Schneller on the following grounds: ,-- 9
»CC
o ::0
1. Objector lacks standing to challenge President Obama's
because is not a member of the Democratic Party.
2, This Court lacks jurisdiction to consider a challenge to President Obama's
eligibility under the U.S. Constitution for the office of President of the United States. No
candidate' s affidavit averring eligibility was filed, or required to be filed, under Section 910 of
the Election Code, 25 P.S. § 2870. Because no such affidavit was required or filed, this Court
lacks jurisdiction to consider a challenge to President Obama's eligibility.
3. The contention which is the sole basis for Objecto!'s challenge to President
Obanla's nomination petition - that, despite being born in the United States, President Obama is
not a "natural born citizen" eligible to be President because his father was not a U.S. citizen - is
legally meritless and has been uniformly rejected.
4. Under well-established law, objector carmot reserve the right to allege specific
defects in -:he nomination petition at a later date, but must do so, with specificity, in the petition
challenging the nomination petition.
DB 1/ 69191726.1
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In support of this Motion, Candidate President Barack Obama relies on and incorporates
by reference the attached Memorandum of Law and exhibits thereto.
WHEREFORE, Candidate President Barack Obama prays that Objector's Petition be
stricken and dismissed, with all costs assessed against objector.
DATE: February 28,2012
DB 11 69191726.1
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Respectfully submitted,
ohn P. Lavelle, Jr., I.D. No. 54279
1701 Market Street
Philadelphia, P A 19103
(215) 963-4824 (telephone)
(215) 963-5001 (facsimile)
Attorney for Respondent Candidate
President Barack Obama
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PROOF OF SERVICE
I hereby certify that, on this 28th day of February 2012, I caused the foregoing to be
served on the following parties in the manner indicated below:
Service bye-mail and first class mail, postage prepaid:
DB 11 69191726.1
James D. Schneller
430 East Lancaster Avenue #E25
Saint Davids, P A 19087
Telephone: 610-688-9471
E-mail: BallotNOW@aol.com
Objector Pro Se
ohn P. Lavelle, Jr., I.D. No. 54279
1701 Market Street
Philadelphia, P A 19103
(215) 963-4824 (telephone)
(215) 963-5001 (facsimile)
Attorney for Respondent Candidate
President Barack Obama
3
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In re: Nomination Petition of
Barack Obama
In re: Nomination Petition of
Patrick Meehan
Objection of: James D. Schneller
No.: 75 M.D. 2012
MEMORANDUM OF LAW IN SUPPORT OF
MOTION TO STRIKE AND DISMISS OF PRESIDENT BARACK OBAMA
Objector James D. Schneller seeks to prevent Pa. Democratic voters from casting ballots
in the upcoming Democratic primary supporting the re-election of the incumbent President of the
United States, President Barack Obama. This objection is only the latest in a series of such
filings around the country seeking to overturn through litigation the results of the 2008
presidential election and to interfere with the electorate's consideration of the President's
candidacy for re-election. Courts have uniformly rejected virtually identical filings. This latest
objection should likewise be stricken and dismissed. Objector lacks standing to challenge
President Obama's nomination petition. Moreover, this Court does not have jurisdiction to
determine the qualifications of a candidate's eligibility under the U.S. Constitution for the office
of President of the United States. Objector's filing is legally meritless and should be stricken
and dismissed. President Obama was a United States citizen from the moment of his birth in
Hawaii. Since he held citizenship from birth, all Constitutional qualifications have been met.
Ankeny v. Governor of State of indiana, 916 N.E.2d 678 (Ind. App., 2009); see United States v.
Marguet-Pillado, 648 F.3d 1001, 1006 (9th Cir., 2011). There is no basis to question the
President's citizenship or qualifications to hold office. Respondent should be awarded costs
incurred in responding to this frivolous objection.
DBl/6919178S.1
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I. BACKGROUND
Objector Schneller filed a "Petition To Set Aside Nomination Petitions of Barack Obama
and Patrick Meehan, And To Test Title, With Petition to Convene 25 Pa.C.S. § 2936 Committee
To Reject Nomination Petitions" with this Court on February 15,2012. Schneller does not
allege any specific defect in President Obama's nomination petition under the Pa. Election Code.
In particular, he does not contend that President Obama's nomination petition was defective in
any specific respect under Section 976 of the Election Code, 25 P.S. § 2936, that it failed to
contain a sufficient number of genuine signatures of registered Pennsylvania electors or valid
circulators' affidavits, or that the required filing fee was not paid. Rather, he purports to
"reserve[] the right to object ... on the basis of insufficiency of the number and/or quality of
signatures and other defects" at some unspecified time in the future. Schneller Petition, at 12.
The sole purported basis for his objection is his contention that President Obama is not a "natural
born Citizen" eligible for the office of President of the United States under the U.S. Constitution.
Schneller Petition, ~ ~ 4 1 - 4 5 and pp. 13-14. The bulk ofthe Petition is devoted to political
commentary concerning a purported effort by the two major political parties to "overthrow" the
Pennsylvania and United States Governments.
On February 22,2012, this Court entered an Order recognizing that Objector Schneller
had combined in his single petition challenges to the nomination petitions of President Obama
and Patrick Meehan with requests seeking a committee convened pursuant to Section 976 of the
Election Code and challenging the 2006 amendment to Section 910 of the Election Code
providing that candidates for president and vice president need not file candidate affidavits. This
Court's February 22 Order limited the petition for review at No. 75 M.D. 2012 to objections to
the Nomination Petitions of President Obama and Patrick Meehan. The Court granted Objector
Schneller leave to file a separate action asserting his purported claims concerning the committee
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pursuant to Section 976 of the Election Code and the challenge to the 2006 amendment to
Section 910 of the Election Code.
Mr. Schneller previously unsuccessfully asserted purported claims challenging President
Obama's eligibility to serve as President of the United States. In December 2008, Schneller filed
an Application for Extraordinary Jurisdiction, Petition for Emergency Stay and Injunction and
Petition for Writ of Mandamus filed in the Pa. Supreme Court against then-Senator Obama as
well as the Secretary of the Commonwealth. The Supreme Court denied the Petition for Writ of
Mandamus and Application for Emergency Stay And Injunction in a Per Curiam Order.
Schneller v. Cortes, No. 199 MM 2008 (Pa. Jan. 8,2009) (attached as Exhibit A).
The Delaware County Voter Registration Office certified in correspondence to
undersigned counsel on February 27,2012, that James Schneller, date of birth December 26,
1955, is a registered elector in Delaware County at 500 E. Lancaster Ave., Apt. DIll, Wayne,
PA 19087, and that Mr. Schneller is registered with "No Affiliation". See Exhibit B.
II. ARGUMENT
A. Objector Lacks Standing To Challenge President Obama's Nomination
Petition Because He Is Not A Member Of The Democratic Party.
Standing to challenge a nomination petition is a fundamental requirement. In re:
Nomination Petition of Freeman, 540 A.2d 606, 610 n. 6 (Pa. Cmwlth. 1988). A person
registered in a party other than that of the candidate cannot vote in the candidate party's primary
election and thus may not challenge the nomination petition. In re: Nomination Petition of
Samms, 543 Pa. 681, 674 A.3d 240 (1996); In re: Nomination Petition of Pas quay, 525 A.2d 13
(Pa. Cmwlth.), aff'd, 515 Pa. 453, 529 A.2d 1076 (1987) (affirming on the basis of the
Commonwealth Court's opinion). A challenger who is a registered Republican does not have
standing to challenge a candidate's Democratic party primary nomination petition. In re:
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Nomination Petition o/Williams, 625 A.2d 1279 (Pa. Cmwlth. 1993). As Judge Palladino of this
Court explained,
Pennsylvania maintains a system of strictly partisan primary elections. Our anti-
party raiding legislation provides that only registered electors of a particular
party may participate in that party's candidate selection process. No cross-
over voting is permitted. Only registered and enrolled members of a party
may sign the nominating petitions of party candidates, and even the right to
circulate a candidate's petition is strictly limited to members of that political
lli!!.tv.. Therefore, the conclusion is inescapable that while voting members of a
particular political party do have a substantial interest in assuring Election Code
compliance of the candidates in that party's primary election, non-members, who
are not eligible to participate in any manner, do not have such a substantial
interest.
Pasquay, 105 Pa. Cmwlth. at 535 (citations omitted and emphasis added).
Objector fails to satisfy this basic requirement of standing. He does not allege that he is a
member of the Democratic Party. To the contrary, he avers erroneously that he "is not required
to be a member of either major party in order to have standing to file this action." Schneller
Petition, ~ 1 O. The Delaware County Voter Registration Office has certified that Mr. Schneller is
registered as "Not Affiliated." See Exhibit A. As a result, objector did not have the right to
participate in the Democratic party's candidate selection process, has no substantial interest in
the outcome of the Democratic primary and lacks standing to challenge President Obama's
.. .. 1
nommatlOn petItion.
B. This Court Lacks Jurisdiction To Consider Objector's Challenge To
President Obama's Eligibility To Serve As President Of The United States.
This Court lacks jurisdiction to consider objector's challenge, which solely concerns
President Obama's eligibility to serve as President. State courts simply do not have jurisdiction
over the subject of a candidate's eligibility under the U.S. Constitution for the office of President
of the United States. As a California Appellate Court recently held in affirming the dismissal of
Contrary to Schneller's contention (Schneller Petition at 20), this Court has no authority to compel "citizens
who are registered members of the major parties" to be joined involuntarily as parties to provide standing.
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a similar challenge to President Obama's eligibility filed in that state, "[t]he presidential
nominating process is not subject to each of the 50 states' election officials independently
deciding whether a presidential nominee is qualified, as this could lead to chaotic results." Keyes
v. Bowen, 189 Cal. App. 4th 647,660 (2010). Rather, federal law sets forth the exclusive
procedure by which objections to the qualifications of a presidential candidate may be registered
and resolved. "[M]echanisms exist under the Twelfth Amendment and 3 U.S.C. § 15 for any
challenge to any candidate to be ventilated when electoral votes are counted, and [] the
Twentieth Amendment provides guidance regarding how to proceed if a president elect shall
have failed to qualify. Issues regarding qualifications for president are quintessentially suited to
the foregoing process." Id. at 661 (citations omitted). Therefore, any challenge to President
Obama's eligibility to serve as President "is committed under the Constitution to the electors and
the legislative branch, at least in the first instance," id. - not to this Court.
The Pennsylvania Supreme Court addressed the issue of jurisdiction to hear a challenge
to a candidate's qualifications in the context of a nominating petition challenge in In Re Jones,
505 Pa. 50,476 A.2d 1287 (1984). In Jones, a plurality of the Supreme Court recognized that
this Court lacked jurisdiction, when hearing a nomination petition challenge, to" make an a
priori determination of whether a candidate meets the constitutional requirements for the office
she seeks to obtain and on the basis of that judgment deny the candidate the right to put her name
before the public for their consideration." As Chief Justice Nix explained, "[i]n the absence of a
demonstration of a specific defect in the nomination petition under section 977, a candidate
cannot be precluded from running for the office for which the nomination petition was filed."
Id., 505 Pa. at 65. The Court rejected the argument that the "not filed by persons entitled to file
the same" language of Section 977 of the Election Code, 25 P.S. § 2937, conveyed jurisdiction to
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entertain challenges to the qualifications of a candidate in the absence of an identified defect in
the nomination petition such as a false candidate's affidavit. Id., 505 Pa. at 66-67.
Election Code provisions applicable to nominations for the presidential primary establish
that the Commonwealth does not have a role in determining the qualifications under the u.s.
Constitution of a candidate for President. Unlike other elective offices, a candidate's affidavit
stating that the candidate "is eligible for such office" is not required for a candidate for President
of the United States. Section 910 of the Election Code, 25 P.S. § 2870 explicitly excludes
presidential candidates from the affidavit requirement: "In the case of a candidate for nomination
as President of the United States, it shall not be necessary for such candidate to file the affidavit
required in this section to be filed by candidates." In fact, no candidate's affidavit was filed as
part of President Obama's nomination petition. Rather, in accordance with Section 809 .1 (b) of
the Election Code, 25 P.S. § 2839.1(b), President Obama timely filed a certificate in the form
prescribed by the Secretary of the Commonwealth stating only that he is a candidate for the
nomination of President of the United States and that he authorizes delegates and alternate
delegates to pledge their support and commit themselves to him. See Certificate attached as
Exhibit B. As a result, decisions by this Court determining a candidate's qualifications for office
based on a challenge to the veracity of the candidate's affidavit are inapposite, and provide no
basis for this Court to consider objectors' challenge here. See, e.g., In re: Nomination Petition of
Pippy, 711 A.2d 1048 (Pa. Cmwlth 1998) (concluding that under section 910, court had
jurisdiction to consider challenges to candidate's affidavit concerning domicile, distinguishing
Jones on grounds it did not concern false candidate's affidavit);.In re: Nomination Petition of
Street, 102 Pa. Cmwlth. 155,516 A.2d 791(1986) (concluding that under Jones and section 910,
court had jurisdiction to consider challenges to candidate's affidavit concerning domicile).
DBI/69191785.1
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Because objector does not contend that President Obama's nominating petition was
defective under the Election Code, and no candidate's affidavit was filed or required to be filed
as part of the nominating petition, this Court lacks jurisdiction to consider his objection.
C. Objector's Challenge is Devoid Of Merit Under Well-Established Law And
Should Be Dismissed.
Even if objector had standing to challenge President Obama's eligibility, and this Court
had jurisdiction to consider that challenge, objector's challenge is utterly meritless as a matter of
law. The legal theory on which Objector's Petition is based - that, despite being born in the
United States, President Obama is not a "natural born citizen" eligible to be President because
his father was not a U.S. citizen - is manifestly incorrect. See, e.g., us. v. Wong Kim Ark, 169
U.S. 649,654-658 (1898) (recognizing that the meaning of the term "natural-born citizen of the
United States" must be interpreted in light of English common law principles, under which "any
person who (whatever the nationality of his parents) is born within the British dominions is a
natural born British subject"); Schneider v. Rusk, 377 U.S. 163, 165 (1964) (equating a "natural
born citizen" who is eligible to be President to a native-born, as opposed to a naturalized,
citizen); Hollander v. McCain, 566 F. Supp. 2d 63, 66 (D.N.H. 2008) ("Those born 'in the
United States, and subject to the jurisdiction thereof' have been considered American citizens
under American law in effect since the time of the founding and thus eligible for the
presidency. ")
A series of decisions have uniformly rejected the identical argument objectors make here
with respect to President Obama. See, e.g., Ankeny v. Governor of State of Indiana, 916 N.E.2d
678 (Ind. App. 2009) (rejecting argument that President Obama is constitutionally ineligible to
assume to office of President because his father was a citizen of the United Kingdom, concluding
"that persons born within the borders of the United States are 'natural born Citizens' for Article
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II, Section 1 purposes, regardless of the citizenship of their parents) (attached as Exhibit C);
Farrar v. Obama, Docket. No. OSAH-SECSTATE-CE-1215136-60-MALIHI (Ga. State Admin.
Feb. 3, 2012) (relying on Ankeny and Ark, inter alia, to conclude that President Obama "became
a citizen at birth and is a natural born citizen") (attached as Exhibit D); Tisdale v. Obama, Civil
Action No. 3: 12-cv-00036-JAG (E.D.Va. Jan. 23,2012) (citing Ark and Hollander, inter alia, as
authority that "[i]t is well settled that those born in the United States are natural born citizens")
(attached as Exhibit E). Objector's contention to the contrary is legally meritless and should be
rejected by this Court.
D. Objector Cannot "Reserve The Right" To Make Specific Objections
Concerning Alleged Defects.
Objector does not identify any specific alleged defect in President Obama's nomination
petition. Instead, he purports to "reserve[] the right to object ... on the basis of insufficiency of
the number andlor quality of signatures and other defects" under the Election Code at some
unspecified date in the future. Schneller Petition, at 12. It is well-established, however, that
objector cannot postpone or reserve the right to allege defects in the future, but must do so with
specificity in his petition.
Section 977 of the Election Code, 25 P.S. § 2937, provides that all nomination petitions
and papers shall be valid unless "a petition is presented to the court specifically setting forth the
objections thereto, and praying that the said petition or paper be said aside." A general objection
is not enough. Rather, the exact page and line number for each challenged signature and the
reason for invalidity of each signature must be included in the petition challenging a nomination
petition. In re: Nomination Petition o/Samms, 543 Pa. 681, 674 A.2d 240 (1996). This
requirement is imposed in order to ensure that a candidate is provided adequate notice of which
signatures are in issue so that the candidate may mount a defense to the challenges. Appeal of
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Beynon, 370 Pa. 532, 88 A.2d 789 (1952); In re Nomination Petition of Bishop, 525 Pa. 199,579
A.2d 860 (1990).
Boilerplate objections that do not advise the candidate which signatures in the nomination
petition are challenged and claim of a right to amend after the seven-day period for filing has
passed are inadequate under Section 977. In re Nomination Petition of Bishop, supra, Failure to
comply with this requirement is fatal. Id. Objector's attempt to reserve the right to allege
specific defects at a later time is improper and should be rejected.
2
E. Award of Costs.
Section 977 of the Election Code provides that "In case any such petition [to set aside] is
dismissed, the court shall make such order as to the payment of costs of the proceedings,
including witness fees, as it shall deem just." 25 P.S. § 2937. Imposition of costs on dismissal
of objection to a nomination petition is a matter for the Court's discretion. In re: Nomination
Paper of Nader, 588 Pa. 450, 905 A.2d 450 (2006). Objector should be required to reimburse
the costs incurred in responding to their meritless petition, including attorneys' fees.
2
President Obama's nomination petition was supported by over 2200 pages of signatures. Even if Objector were
permitted to conduct an extended review of these signatures on a schedule of his own choosing, rather than the
one established in the Election Code, the likelihood of identifying a sufficient number of signatures to
challenge to make a difference is extraordinarily remote.
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III. CONCLUSION
For the foregoing reasons, Objector's Petition challenging the nomination petition of
President Obama should be stricken and dismissed, with all costs assessed against objector.
DATE: February 28,2012
DBlI 69191785.1
10
Respectfully submitted,
ohn P. Lavelle, Jr., I.D. No. 54279
1701 Market Street
Philadelphia, P A 19103
(215) 963-4824 (telephone)
(215) 963-5001 (facsimile)
Attorney for Respondent Candidate
President Barack Obama
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PROOF OF SERVICE
I hereby certify that, on this 28th day of February 2012, I caused the foregoing to be
served on the following parties in the manner indicated below:
Service bye-mail and first class mail, postage prepaid:
DBl! 69191785.1
James D. Schneller
430 East Lancaster Avenue #E25
Saint Davids, P A 19087
Telephone: 610-688-9471
E-mail: BallotNOW@aol.com
Objector Pro Se
ohn P. Lavelle, Jr., I.D. No. 54279
1701 Market Street
Philadelphia, P A 19103
(215) 963-4824 (telephone)
(215) 963-5001 (facsimile)
Attorney for Respondent Candidate
President Barack Obama
11
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EXHIBIT A
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.".
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
JAMES D. SCHNELLER, No. 199 MM 2008
Petitioner
v.
SECRETARY OF THE
COMMONWEALTH PEDRO A. CORTES, :
PENNSYLVANIA BUREAU OF
COMMISSIONS ELECTIONS AND
LEGISLATION, SENATOR BARACK
OBAMA,
Respondents
PER CURIAM
ORDER
AND NOW, this 8
th
day of January, 2009, the "Application for Extraordinary
Jurisdiction," 'which is treated as an Application for Leave to File Original Process, is
GRANTED, and the Petition for Writ of Mandamus, the Application for Emergency Stay and
Injunction, and the Motion to Supplement the Record are DENIED.
TRUE & CORRECT COPY
ATTEST: January 8, 2009
2 ~ ' ~
Elaine Hellen, Assistant Chief Clerk
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EXHIBITB
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Feb.27. 2012 10:39AM
DELAWARE COUNTY
VOTER REGISTRATION COMMISSION
GOVERNMENT CENTER BUILDING
COUNCIL
THOMAS J Me GARRIGLfi
CHAIRMAN
MARlO J CIVERA, JR
VlCE·OWRJolAN
COLLI!I!N P MORRONE;
JOHN P MC BLUN
DAVIDJ WHITe
February 27,2012
Jolm P. Lavelle Jr
1701 Market St
Philadelphia, Pa 19103
RE: James Schneller
To Whom It May Concern:
201 WEST FRONT SfRE:ET
MEDIA, PENNSYLVANIA 19063
PHONE: (610) 891- 4659
FAX: (610) 891-4814
E-MAIL: voterreg@co.delaware.pa.us
No. 3599 P. 2
MARY lO H!!ADU!Y
Q1IEF ClERK/ OlRECTOR
I hereby celiify that James Schneller, Date ofBhth 12/26/1955 is a Registered Elector in
Delaware County at 500 E. Lancaster Ave, Apt. DIll Wayne Pa 19087. James Schneller is
registered No Affiliation.
; / o / f 1 ~
Mary J 0 Headley
Chief Clerk! Director
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EXHIBIT C
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FOR PIJBLICATION
APPELLANTS PRO SE:
STEVE ANKENY
New Castle, Indiana
BILL KRUSE
Roselawn, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attomey General of Indiana
FRANCES BARROW
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
STEVE ANKENY AND BILL KRUSE, )
)
)
)
)
)
)
)
)
)
Appellants-Plaintiffs,
vs. No. 49A02-0904-CV-353
GOVERNOR OF THE STATE OF
INDIANA,
Appellee-Respondent.
BROWN, Judge
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable David J. Dreyer, Judge
Cause No. 49DIO-OS12-PL-55511
November 12, 2009
OPINION - FOR PUBLICATION
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Steve Ankeny and Bill Kruse (collectively, "Plaintiffs"), pro se, appeal the trial
COUlt's grant of a motion to dismiss filed by Mitch Daniels, in his official capacity as the
Govemor of the State of Indiana ("Govemor"). Plaintiffs raise nine issues, which we
revise and restate as whether the h-ial cOUlt erred by granting the motion to dismiss under
Ind. Trial Rule 12(B)(6).1 We affillll.
2
The relevant facts follow. On December 9, 2008, Plaintiffs filed a "PETITION
FOR EXTRAORDINARY WRIT OF PROHIBITION" against the Govemor
3
to prevent
the Govemor "from issuing a 'Certificate of Ascertaimnent,' or any other docUlnent, to
Congress of the United States containing any popular votes for Barack Obama and Joe
Biden for the appointment as Chief Electors ... [or] Jolm McCain and Sarah Palin for the
appointment of Electors." Appellants' Appendix at 6. On JanualY 30, 2009, the
1 We note that pro se litigants, such as Plaintiffs, "are held to the same standard as licensed
lawyers." Novatny v. Novatny, 872 N.E.2d 673, 677 11.3 (fild. ct. App. 2007). This comt will not
"indulge in any benevolent presumptions on [their] behalf, or waive any lUle for the orderly and proper
conduct of [their] appeaL" Foley v. Marlllor, 844 N.E.2d 494, 496n.l (Ind. Ct. App. 2006).
Thus, we will attempt to address the issues raised by Plaintiffs. To the extent that Plaintiffs raise
additional issues, the Plaintiff" fail to develop a cogent argument and cite to authority. Consequently, the
arguments are waived. See, U" Loomis v. Ameritech, 764 N.E.2d 658, 668 (Ind. ct. App. 2002)
(holding argument waived for failure to cite authority or provide cogent argument), reh'g denied, trans.
denied.
2 The trial comt also granted the Govemor's motion to dismiss on the bases of mootness under
Ind. Trial Rule 12(B)(l) and the equitable doctrine of laches. Because we fInd that Plaintiffs failed to
state a claim upon which relief can be granted under T.R. 12(B)(6), we need not address the t11al court's
alternative grounds for dismissal.
3 The Complaint also named the Democratic National COlllmittee, Barack Obama, the Republican
National COlllluittee, and John McCain as detendants. The Plaintiffs state, without citation to the record,
that "only the Governor of the State of Indiana accepted Selvice of Smlllllons." Appellants' Brief at 3.
We note that the Plaintiff'" case SUnllllalY lists only the Governor as appellee, the Plaintiffs' notice of
appeal lists only the Governor as defendant, and the Plaintiffs' briefs contain certificates of selvice
indicating that the briefs were selved upon only the governor.
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Govemor filed a motion to dismiss alleging in patt that "the Plaintiffs have failed to state
a claim upon which relief Catl be granted." Appellee's Appendix at 1. The Govemor also
filed a memorandum in SUppOlt of the motion to dismiss. On FeblUat)' 17, 2009, the
Plaintiffs filed their opposition to the Govemor's motion to dismiss. On March 16, 2009,
the trial comt granted the Govemor's motion to dismiss after a heat'ing. On April l3,
2009, the Plaintiffs filed their notice of appeal.
The sole issue is whether the trial comt elTed when it dismissed Plaintiffs'
complaint. A motion to dismiss for failure to state a claim tests the legal sufficiency of
the claim, not the facts suppOlting it. General Cas. Ins. Co. v. Bright, 885 N.E.2d 56, 57
(Ind. Ct. App. 2008) (citing Chatter One MOltg. Corp. v. Condra, 865 N.E.2d 602, 604
(Ind. 2007». Thus, our review of a trial comt's grant or denial of a motion based on Tlial
Rule 12(B)(6) is de novo. leI. at 58. When reviewing a motion to dismiss, we view the
pleadings in the light most favorable to the nonmoving party, with every reasonable
inference construed in the nonmovant's favor. Id. A complaint may not be dismissed for
failure to state a claim upon which relief can be granted unless it is clear on the face of
the complaint that the complaining patty is not entitled to relief.
4
Id. However, a COUlt
4 In his brief, the Govemor argues that the motion to dismiss included an affidavit, and therefore
because "matters outside the pleadings [were] presented to the COUlt 011 a 12(B)(6) motion, the motion
shall be treated as one for sunllualY judgment Ullder T.R. 56. T.R. 12(B)." Appellee's Blief at 6. While
tme that the general rule is that when a motion to dismiss for failure to state a claim under T.R. 12(B)(6)
is supplemented with materials outside the pleadings it should be treated as a motion for summary
judgment, we note that:
[W]hen examination of the face of a complaint alone reveals that the plaintiff will not be
entitled to relief under any set of circumstances, consideration of external materials
aimed at substantiating or contradicting the complaint's factual allegations is inelevant,
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need not accept as true any "conclusory, non-factual asseIiions or legal conclusions."
Irish v. Woods, 864 N.E.2d 1117, 1120 (Ind. ct. App. 2007). "Thus, while we do not test
the sufficiency of the facts alleged with regards to their adequacy to provide recovelY, we
do test their sufficiency with regards to whether or not they have stated some factual
scenario in which a legally actionable injury has OCCUlTed." Trail v. Boys and Girls
Clubs ofNOlihwest Indiana, 845 N.E.2d 130, 134 (Ind. 2006).
In their complaint, the Plaintiffs appear to suggest that the Govemor has a duty to
determine a person's eligibility to become President in issuing the "Certificate of
Asceliainment" "officially appoint[ing] the electors" who cast the State of Indiana's
votes in the Electoral College, the body which decides the election for the President of
the United States ("President"). Transcript at 13. Specifically, Plaintiffs appear to argue
that the Govemor did not comply with tIus duty because: (A) neither President Barack
Obama nor Senator John McCain were eligible "to be appointed 'Elector in Chief in
violation of Ariicle II, Section 1, Clause 2' s prohibition tIlat no United States Senator
because a fortiori the complaint fails to state a claim upon which relief can be granted
under any factual scenario. In that instance, the trial court should exclude material
outside the pleadings which are submitted with a 12(B)(6) motion, rather than convelt the
motion into one for SUllll11aty jUdgment, because the extemal material are ilTelevant to tlle
motion.
Dixon v. Siwy, 661 N.E.2d 600, 603 (Ind. ct. App. 1996). In tltis case, there is no evidence tllat tlte trial
comt considered the matellal contained in the affidavit prepared by J. Bradley King, Co-Director for the
Indiana Election Division, which contains nine paragraphs explaining the vote-tallying process actually
canied out following the November 4, 2008 election. The affidavit was not relevant to the trial court's
order granting the Govemor's motion to dismiss. TIllIS, it was proper for the trial court to exclude this
affidavit and handle tlte Govel1l0r's motion as a motion to disntiss for failure to state a claim ratlter than
one for smmnalY judgment. See Trail v. Boys and Girls Clubs of NOithwest Indiana, 845 N.E.2d 130,
134, 140 (hld. 2006) (affinlling the trial com1's grant of a motion to dismiss under Rule 12(B)(6) even
after the patties "filed several affidavits, exhibits, and briefs").
4
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currently holding that office shall be appointed Elector for any State," and (B) neither
President Barack Obama nor Senator John McCain were eligible to hold the office of
President because neither were "bom naturally within any Altide IV State of the 50
United States of Alnelica .... " Appellants' Appendix at 11-12, 16-18.
Initially, we note that the Plaintiffs do not cite to any authority recognizing that the
Govemor has a duty to detennine the eligibility of a party's nominee for the presidency.
The Plaintiffs do not cite to authority, nor do they develop a cogent legal argument
stating that a certificate of asceliainment has any relation to the eligibility of the
candidates. However, we note that even if the Govemor does have such a duty, for the
reasons below we cannot say that President Barack Obama or Senator John McCain was
not eligible to become President. We will handle each of Plaintiffs' arguments in tum.
A. Sitting Senator
First, PlaintitTs argue that "[t]he Constitution of the United States emunerates
qualification for the Office of Presidential and Vice-Presidential Electors, and no 'sitting
Senator,' such as Senator Barack Obama and Senator Joseph Biden, or Senator John
McCain, was qualified." Appellants' Brief at 8. We hold for the reasons stated below
tllat PlaintitTs failed to state a cognizable legal clainl upon which relief can be granted.
In evaluating Plaintiffs' claim, one need not go fmiher than compare their framing
of the electoral process in the State of Indiana with Indiana's electoral process as
constmcted by state and federal statute, and indeed by the U.S. Constitution itself.
Aliide II, Section 1 of the U.S. Constitution sets f01ill how the President is chosen; the
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mechanism used is called the Electoral College. See 3 U.S.C. § 4. AItiele II, Section 1
desclibes how the Electoral College is filled as follows:
Each State shall appoint, in such Manner as the Legislature thereof
may direct, a Number of Electors, equal to the whole Number of Senators
and Representatives to which the State may be entitled in the Congress: but
no Senator or Representative, or Person holding an Office of Tmst or Profit
under the United States, shall be appointed an Elector.
U.S. CONST. mt. II, § 1, cl. 2. Much of the rest of Miele II, Section 1 was changed by the
Twelfth Amendment which was ratified in June 1804. The Twelfth Amendment directs:
The Electors shall meet in their respective states, and vote by ballot
for President ... and transmit sealed to the seat of the government of the
United States, directed to the President of the Senate; --The President of the
Senate shall, in the presence of the Senate and House of Representatives,
open all the celtificates and the votes shall then be counted; -- The person
having the greatest number of votes for President, shall be the President ...
U.S. CONST. amend. XII.
Thus, the U.S. Constitution vests in the valious state legislatmes the authority to
determine how their state chooses their Electors. The Indiana Legislature acted on this
authority when it enacted Ind. Code § 3-10-4-4, which allows voter ballots to calTY the
name of the "nominees for President and Vice President of the United States of a political
party," and that such votes for each nominee "is a vote cast or registered for all of the
candidates for presidential electors of the palty .... " By viltue of its nine members of
the House of Representatives and its two Senators, Indiana was entitled to eleven electors
6
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111 the November 4, 2008 election.
5
Both the Democratic and Republican palty
nominated eleven individuals who were residents of the State of Indiana to serve as their
palty's electors in the 2008 presidential election.
6
See Ind. Code § 3-8-4-2 ("[a] political
pmty shall conduct a state convention to ... nominate candidates for presidential electors
and altemate electors .... "); see also Appellants' Appendix at 21-22. Neither President
Barack Obama nor Senator John McCain were nominated as electors for their respective
pmties in the 2008 election. Appellmlts' Appendix at 21-22.
"Not later than noon on the second Monday following an election, each circuit
court clerk shall prepare a celtified statement ... of votes received by each candidate for:
(1) federal office .... " Ind. Code § 3-12-5-6(a). These ceItified statements are sent to
the election division of the Secretary of State. Ind. Code § 3-12-5-6(b). Once the election
results have been tabulated, "not later than noon of the last Tuesday in November," the
SecretalY of State "shall ceItify to the govemor the candidate receiving the highest
number of votes for each office." Ind. Code § 3-12-5-7. The Govemor must then execute
5 The date of the election was chosen pursuant to Ind. Code § 3-10-2-1, which states that "[a]
general election shall be held on the first Tuesday after the first Monday in November in each even-
numbered year. ... "
6 The Democratic Party's candidates for Indiana electors were: (1) Jeffi:ey L. Chidester, of
Valparaiso; (2) Owen "Butch" Morgan, of South Bend; (3) Michelle Boxell, of Warsaw; (4) Charlotte
Mmiin, of Indianapolis; (5) Jeny J. LlLx, of Shelbyville; (6) Connie Southworth, of Salamonia; (7) Alan
P. Hogan, of Indianapolis; (8) Myrna E. Brown, of Vincennes; (9) Clarence Benjamin Leatherbmy, of
Salem; (10) Daniel J. Parker, of Indianapolis; and (II) Cordelia Lewis Burks, of Indianapolis, The
Republican PaIiy's candidates for Indiana electors were: (1) Chuck Williams, of Valparaiso; (2) Edward
Smith, of Galveston; (3) Barbara Krisher, of FOli Wayne; (4) Daniel BOlineI', of Bedford; (5) Virginia
Marner, of Kokomo; (6) Susan Lightle, of Greenfield; (7) Pearl Swanigan, of Indianapolis; (8) William
Springer, of Sullivan; (9) David Buskill, of Jeffersonville; (10) Samual Wayne Gooilll1an, of Greenwood;
and (11) Juana Watson, of Columbus, Appellants' Appendix at 21-22; see also 2008 Presidential Elector
Candidates, available at http://www.in.gov/sos/elections/files/2008_PI·esidential_ ElectOl'_ Candidate_
List.pdf (last visited Oct. 8, 2009),
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a certificate of ascertainment which officially appoints the winning presidential electors;
a copy of the certificate of ascertainment is then sent to the Archivist of the United
States.
7
3 U.S.C. § 6.
The presidential electors assemble "in the chamber of the Indiana house of
representatives on the first Monday after the second Wednesday in December as provided
by 3 U.S.c. 7, or on another day fixed by the Congress of the United States, at 10 a.m. to
elect the President and Vice-President of the United States." Ind. Code § 3-10-4-7. The
electors then fin1lish copies of the "certificates so made by them and the lists attached
thereto"S to the Vice President, the Indiana Secretary of State, the Archivist of the United
States, and "judge of the district in which the electors shall have assembled." 3 U.S.C. §
11. The votes of the electors of each state are then tallied by the Congress of the United
States and the new President is announced. 3 U.S.C. § 15.
The Plaintiffs have a different view of the electoral process in the State of Indiana.
In their complaint, the Plaintiffs allege that:
By allowing the name of Barack Obama upon the ballot for
appointment of Electors, the Govemor of the State of Indiana has allowed
Barack Obama to be appointed "Elector in Chief' in violation of Article II,
Section 1, Clause 2' s prohibition that no United States Senator cUlTently
holding that office shall be appointed Elector for any State.
7 The Archivist of the United States transmits copies "to the two Houses of Congress ... of each
and evelY such certificate so received .... " 3 U.S.C. § 6.
8 The electors prepare the certificates in accordance with 3 U.S.C. §§ 6, 9-11.
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Appellants' Appendix at 16. The Plaintiffs make a similar charge against Senator Jolm
McCain's name appearing on the ballot. In essence, Plaintiffs argue that because
President Barack Obama and Senator John McCain were United States Senators on
November 4, 2008, they were constitutionally ineligible to be appointed as presidential
elector (or, as Plaintiffs put it, "Elector in Chief').
Plaintiffs do not state a meritorious claim. Notwithstanding the fact that it is
unclear what Plaintiffs are referring to by the phrase "Elector in Chief," Plaintiffs'
characterization of the electoral process in the State of Indiana simply is not consistent
with the applicable laws. The fact that the names "Barack Obanm" and "John McCain"
are the ones that appeared on the ballot does not change the fact that they were in fact
candidates for the presidency, not any of Indiana's electors.
This distinction between a candidate and an elector IS readily asceliainable
throughout Title 3 of the Indiana Code. As an example, we examine Ind. Code § 3-8-1-6,
titled "President or Vice President; electors." That code section states:
(a) A candidate for the office of President or Vice President of the
United States must have the qualifications provided in Article 2,
Section 1, clause 4 of the Constitution of the United States.
(b) A candidate for the office of elector for President and Vice President
of the United States must have the qualifications provided in Aliicle
2, Section 1, clause 2 of the Constitution of the United States and
Section 3 of the Fourteenth Amendment to the Constitution of the
United States.
Ind. Code § 3-8-1-6 (emphasis added). Thus, Ind. Code § 3-8-1-6 expresses a dichotomy
between the presidential and vice-presidential nominees and the slate of electors
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appointed by each political party to serve in the Electoral College. See also Ind. Code §
3-10-4-1 (stating that the names of the "electors of President and Vice President of the
United States may not be placed on the ballot," but that "[t]he names of the nominees for
President and Vice President of the United States ... shall be placed ... on the ballot ..
. ").
TIms, we conclude that Plaintiffs' argument that the Govemor has allowed
President Bamck Obama and Senator John McCain to be appointed "Elector in Chief' in
violation of Ariicle II, Section 1, Clause 2's prohibition against sitting Senators being
appointed Elector for any State fails to state a claim upon which relief can be granted.
B. Natural Born Citizen
Second, the Plaintiffs argue that both President Bamck Obama and Senator Jolm
McCain are not "natural bom Citizens" as required for qualification to be President under
Ariicle II, Section 1, Clause 4
9
of the U.S. Constitution, and that therefore because
neither person was constitutionally eligible to become President, "[t]he Govemor ...
should [have been] prohibited by order of [the trial comt] ... from issuing any celiificate
of ascertainment, or any other certified statement, under the State Seal of the State of
Indiana .... " Appellants' Appendix at 13.
Before addressing the Plaintiffs' specific arguments, we think it helpful to point
out the context in which this claim alises. Leading up to the 2008 Presidential Election
9 The Plaintiffs cite the "natural born Citizen" clause as Article II, Section 1, Clause 5 of the U.S.
Constitution, but it is properly cited as Article II, Section 1, Clause 4. See also Ind. Code § 3-8-1-6.
10
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and in the ensuing months after, a number of lawsuits were filed nationwide challenging
both President Barack Obama and Senator Jolm McCain'slo status as "natural bom
Citizens" under AIticle II of the u.S. Constitution. S e e , ~ , Berg v. Obama, 574 F.
Supp. 2d 509 (E.D. Pa. 2008); Hollander v. McCain, 566 F. Supp. 2d 63 (D.N.H. 2008);
Cohen v. Obama, No. 08-2150,2008 WL 5191864 (D.D.C. Dec. 11,2008), aff'd Qy 2009
WL 2870668 (D.C. Cir. Sept. 8, 2009); Wrotnowski v. Bysiewicz, 958 A.2d 709 (COlm.
2008). As to President Obama's status, the most COlmnon argument has been waged by
members of the so-called "bilther" movement who suggest that the President was not
bom in the United States; they support their argument by pointing to "the President's
alleged refusal to disclose publicly an 'official birth celiificate' that is satisfactory to [the
birthers]." Rhodes v. MacDonald, No. 4:09-CV-I06, 2009 WL 2997605, at *1 (M.D. Ga.
Sept. 16,2009), reconsideration deniedQy 2009 WL 3111834 (M.D. Ga. Sept. 18,2009).
The Plaintiffs in the instant case make a different legal argument based strictly on
constitutional interpretation. Specifically, the ClUX of the Plaintiffs' argument is that
10 The United States Senate passed a resolution on April 30, 2008 which explicitly recognized
Senator John McCain as a natmal bom citizen. S.J. Res. 511, 110th Congo (200S). Also, the supposed
authority cited by the Plaintiffs to SUppOIt their claim as to the meaning of AItide II, Section 1, Clause 4
of the U.S. Constitution does not support the argument that John McCain is not a natmal bom citizen.
Plaintiffs state in their brief that the difference between being a "citizen of the United States" and a
"natmal bom Citizen" "involves having [two] parents of U.S. Citizenship, owing no foreign allegiance."
Appellant's Brief at 23. The Plaintiffs then concede that "Jolm McCain ... qualifiers] as a 'citizen of the
United States,' by being bom of [two] parents who were in tmn 'citizens of the United States,' and owed
no foreign allegiance .... " ld. Their brief continues that "John McCain was bom 'subject to the
jurisdiction' of the United States, but he was not bom in one of the 50 States of the Union under AItide
IV of the Constitution, and thus ... was not a 'natmal bom Citizen .... ", ld. at 23-24. Plaintiffs do not
cite to any autholity or develop any cogent legal argument for the proposition that a person must actually
be born within one of the fifty States in order to qualify as a natmal born citizen, and we therefore do not
address Plaintiffs argument as it relates to Senator McCain. See Loomis, 764 N.E.2d at 66S.
11
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"[ c ]ontrary to the thinking of most People on the subject, there's a velY clear distinction
between a 'citizen of the United States' and a 'natural bom Citizen,' and the difference
involves having [two] parents of U.S. citizenship, owing no foreign allegiance."
Appellants' Brief at 23. With regard to President Barack Obama, the Plaintiffs posit that
because his father was a citizen of the United Kingdom, President Obama is
constitutionally ineligible to assume the Office of the President.
The bases of the Plaintiffs' arguments come fi:om such sources as FactCheck.org,
The Rocky Mountain News, an eighteenth century treatise by Ellllllerich de Vattel titled
"The Law of Nations," and various citations to nineteenth centmy congressional debate.
ll
For the reasons stated below, we hold that the Plaintiffs' arguments fail to state a claim
upon which relief can be granted, and that therefore the trial court did not elT in
dismissing the Plaintiffs' complaint.
Section 1 of the Fomieenth Amendment to the U.S. Constitution govems who is a
citizen of the United States. It provides that "[a]l1 persons bom or naturalized in the
United States and subject to the jurisdiction thereof, are citizens of the United States ...
. " U.S. CONST. amend XIV, § 1. Aliicle II has a special requirement to assume the
Presidency: that the person be a "natural bom Citizen." U.S. CONST. mi. II, § 1, cl. 4.
The United States Supreme Comi has read these two provisions in tandem and held that
"[t]hus new citizens may be bom or they may be created by naturalization." Minor v.
11 Plaintiffs do not provide pinpoint citations to the congressional debate quotations to which they
cite.
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Happersett, 88 (21 Wall.) U.S. 162, 167 (1874). In Minor, written only six years after the
Fomteenth Amendment was ratified, the Court observed that:
The Constitution does not, in words, say who shall be natural-bom citizens.
ResOlt must be had elsewhere to asceltain that. At common-law, with the
nomenclature of which the fiamers of the Constitution were familiar, it was
never doubted that all children bom in a countIy of parents who were its
citizens became themselves, upon their birth, citizens also. These were
natives, or natural-bom citizens, as distinguished fl.-om aliens or foreigners.
Some authorities go fuliher and include as citizens children bom within the
jurisdiction without reference to the citizenship of their parents. As to this
class there have been doubts, but never as to the first. For the purposes of
this case it is not necessary to solve these doubts.
Id. at 167-168. Thus, the Court left open the issue of whether a person who is bom
within the United States of alien parents is considered a natural born citizen.
12
Then, in U.S. v. Wong Kim Ark, 169 U.S. 649, 18 S. Ct. 456 (1898), the United
States Supreme Comt confronted the question of "whether a child bom in the United
States, of parents of Chinese descent, who at the time of his bilth are subject to the
emperor of China ... becomes at the time of his bilih a citizen of the United States, by
virtue of the first clause of the fomteenth amendment .... " 169 U.S. at 653,18 S. ct. at
458. We find this case instmctive. The Comi in Wong Kim Ark reaffinned Minor in
that the meaning of the words "citizen of the United States" and "natural-bom citizen of
the United States" "must be interpreted in the light of the common law, the principles and
histOlY of which were familiarly known to the framers of the constitution." Id. at 654, 18
S. ct. at 459. They noted that "[t]he interpretation of the constitution of the United States
12 Note that the Comt in Minor contemplates only scenarios where both parents are either citizens
or aliens, rather in the case of President Obama, whose mother was a u.s. citizen and father was a citizen
of the United Kingdom.
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is necessarily influenced by the fact that its provisions are framed in the language of the
English common law, and are to be read in the light of its histOlY." rd. at 655, 18 S. Ct. at
459 (quoting Smith v. Alabama, 124 U.S. 465, 478, 8 S. Ct. 564, 569 (1888)). The Wong
Kim Ark COUIt explained:
The fundamental principle of the COlUIllon law with regard to
English nationality was bilth within the allegiance-also called 'ligealty,'
'obedience,' 'faith,' or 'power'-of the king. The principle embraced all
persons bom within the king's allegiance, and subject to his protection.
Such allegiance and protection were mutual, -as expressed in the maxim,
'Protectio trallit subjectionem, et subjectio protectionem,' -and were not
restricted to natural-bom subjects and naturalized subjects, or to those who
had taken an oath of allegiance; but were predicable of aliens in amity, so
long as they were within the kingdom. Children, bom ill England, of such
aliens, were therefore natural-bom subjects. But the children, bom within
the realm, of foreign ambassadors, or the children of alien enemies, bom
during and within their hostile occupation of pmt of the king's dominions,
were not natural-bom subjects, because not bom within the allegiance, the
obedience, or the power, or, as would be said at this day, within the
jurisdiction, of the king.
This fundamental principle, with these qualifications or explmlations
of it, was clearly, though quaintly, stated in the leading case known as
'Calvin's Case,' or the 'Case of the Postnati,' decided in 1608, after a
hearing in the exchequer chamber before the lord chancellor and all the
judges of England, and repOlted by Lord Coke and by Lord Ellesmere.
Calvin's Case, 7 Coke, 1, 4b-6a, 18a, 18b; Ellesmere, Postnati, 62-64; s. c. 2
How. St. Tr. 559, 607, 613-617, 639, 640, 659, 679.
The English authorities ever since are to the like effect. Co. Litt. 8a,
128b; Lord Hale, in Hmg. Law Tracts, 210, and in 1 Hale, P. C. 61, 62; 1
BI. Comm. 366, 369, 370, 374; 4 BI. Conull. 74, 92; Lord Kenyon, in Doe
v. Jones, 4 Term R. 300, 308; Cockb. Nat. 7; Dicey, Confl. Laws, pp. 173-
177, 741.
* * * * *
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Lord Chief Justice Cockbum . . . said: 'By the COllunon law of
England, every person bom within the dominions of the crown, no matter
whether of English or of foreign parents, and, in the latter case, whether the
parents were settled, or merely temporarily sojouming, in the country, was
an English subject, save only the children of foreign ambassadors (who
were excepted because their fathers canied their own nationality with
them), or a child bom to a foreigner during the hostile occupation of any
prut of the tenitOlies of England. No effect apperu's to have been given to
descent as a source of nationality.' Cockb. Nat. 7.
Mr. Dicey, in his careful and thoughtful Digest of the Law of
England with Reference to the Conflict of Laws, published in 1896, states
the following propositions, his principal lUles being plinted below in italics:
"British subject' means any person who owes permanent allegiance to the
crown. 'Pelmanent' allegiance is used to distinguish the allegiance of a
Blitish subject from the allegiance of an alien, who, because he is within
the Blitish dominions, owes 'temporalY' allegirulce to the crown. 'Natural-
born British subject' means a British subject who has become a British
subject at the moment of his birth.' 'Subject to the exceptions hereinafter
mentioned, any person who (whatever the nationality of his parents) is born
within the British dominions is a natural-born British subject. This lUle
contains the leading principle of English law on the subject of British
nationality. ' The exceptions aftelwards mentioned by Mr. Dicey are only
these two: '(1) Any person who (his father being an alien enemy) is bom in
a prut of the British dominions, which at the time of such person's bilth is
in hostile occupation, is an alien.' '(2) Any person whose father (being an
alien) is at the time of such person's birth an ambassador or other
diplomatic agent accredited to the crown by the sovereign of a foreign state
is (though bom within the British dominions) an alien.' And he adds: 'The
exceptional ruid unimportant instances in which bilth within the British
dominions does not of itself confer Blitish nationality ru'e due to the fact
that, though at common law nationality or allegiance in substance depended
on the place of a person's birth, it in theOlY at least depended, not upon the
locality of a man's birth, but upon his being bom within the jurisdiction and
allegiance of the king of England; and it might occasionally happen that a
person was born within the dominions without being bom within the
allegiance, or, in other words, under the protection and control of the
crown.' Dicey, Confl. Laws, pp. 173-177, 741.
It thus clearly appears that by the law of England for the last three
centuries, beginning before the settlement of this country, and continuing to
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the present day, aliens, while residing in the dominions possessed by the
crown of England, were within the allegiance, the obedience, the faith or
loyalty, the protection, the power, and the jmisdiction of the English
sovereign; and therefore evelY child bom in England of alien parents was a
natural-bom subject, unless the child of an ambassador or other diplomatic
agent of a foreign state, or of an alien enemy in hostile occupation of the
place where the child was bom.
III. The same lUle was in force in all the English colonies upon this
continent down to the time of the Declaration of Independence, and in the
United States aftelwards, and continued to prevail under the constitution as
Oliginallyestablished.
13
Id. at 655-658, 18 S. Ct. at 459-460.
Also, as quoted in Wong Kim Ark, Justice Joseph StOlY once declared in Inglis v.
TlUstees of Sailors' Snug Harbor, 28 U.S. (3 Pet.) 99 (1830), that "Nothing is better
settled at the common law than the doctrine that the children, even of aliens, bom in a
country, while the parents are resident there under the protection of the govemlllent, and
owing a temporalY allegiance thereto, are subjects by birth." Wong Kim Ark, 169 U.S. at
660, 18 S. Ct. at 461 (quoting Inglis, 28 U.S. (3 Pet.) at 164 (Story, l, concuning)). The
Comt also cited Justice Curtis's dissent in Dred Scott v. Sandford, 60 U.S. (19 How.) 393
(1856):
The first section of the second alticle of the constitution uses the language,
<a natural-bom citizen.' It thus assumes that citizenship lllay be acquired
by bilth. Undoubtedly, this language of the constitution was used in
reference to that principle of public law, well understood in this countIy at
the time of the adoption of the constitution, which refelTed citizenship to
the place of bilth.
13 According to Westlaw, Wong Kim Ark has been cited to in over 1,000 cases.
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Wong Kim Ark, 169 U.S. at 662, 18 S. Ct. at 462 (quoting Dred Scott, 60 U.S. (19 How.)
at 576 (Cmtis, J., dissenting)).
The Court in Wong Kim Ark also cited authOlity which notes that:
All persons bom in the allegiance of the king are natmal-bom subjects, and
all persons bom in the allegiance of the United States are natural-bom
citizens. Bilth and allegiance go together. Such is the mle of the common
law, and it is the common law of this country, as well as of England. We
find no warrant for the opinion that this great plinciple of the common law
has ever been changed in the United States. It has always obtained here
with the same vigor, and subject only to the same exceptions, since as
before the Revolution.
Id. at 662-663, 18 S. ct. at 462 (quotations and citations omitted). The Court held that
11r. Wong Kim Ark was a citizen of the United States "at the time of his bilth.,,14 Id. at
705, 18 S. Ct. at 478.
Based upon the language of Article II, Section 1, Clause 4 and the guidance
provided by Wong Kim Ark, we conclude that persons bom within the borders of the
United States are "natural bOlll Citizens" for Alticle II, Section 1 purposes, regardless of
the citizenship of their parents. Just as a person "bom within the Blitish dOlninions [was]
a natmal-bom British subject" at the time of the framing of the U.S. Constitution, so too
were those "bom in the allegiance of the United States [] natmal-bom citizens.,,15
14 We note the fact that the Comt in Wong Kim Ark did not actually prOnotUlCe the plaintiff a
"natural bom Citizen" using the Constitution'S Article II language is immaterial. For all but forty-four
people in our nation's histOlY (the forty-fom Presidents), the dichotomy between who is a natural bom
citizen and who is a naturalized citizen mlder the Fom1eenth Amendment is irrelevant. The issue
addressed in Wong Kim Ark was whether Mr. Wong Kim Ark was a citizen of the United States on the
basis that he was bom in the United States. Wong Kim Ark, 169 U.S. at 705,18 S. ct. at 478.
15 We reiterate that we do not address the question of natural bom citizen status for persons who
became United States citizens at birth by virtue of being bom of United States citizen parents, despite the
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The Plaintiffs do not mention the above United States Supreme Court authority in
their complaint or blief; they primarily rely instead on an eighteenth century treatise and
quotations of Members of Congress made during the nineteenth centmy. To the extent
that these authorities conflict with the United States Supreme Court's inteIpretation of
what it means to be a natural bom citizen, we believe that the Plaintiffs' arguments fall
under the categOlY of "conclusOlY, non-factual asseliions or legal conclusions" that we
need not accept as true when reviewing the grant of a motion to dislniss for failure to
state a claim. hish, 864 N.E.2d at 1120. Thus, we cannot say that the trial comi en-ed
when it dislnissed the Plaintiffs' case. 16 See generally McCalment v. Eli Lilly & Co.,
860 N.E.2d 884 (Ind. ct. App. 2007) (holding that the plaintiffs' arguments had been
suHiciently addressed by Indiana Supreme Comt precedent and therefore the trial court
did not ell' when it granted the defendant's motion to dismiss for failure to state a claim
upon which relief can be granted); see also, ~ , Diaz-Salazar v. I.N.S., 700 F.2d 1156,
1160 (7th Cir. 1983) (noting in its recitation of the facts that despite the fact father was
fact that they were bom abroad. That question was not properly presented to this COlli1. Without
addressing the question, however, we note that nothing in om opinion today should be understood to hold
that being bom within the fifty United States is the onl;)I way one can receive natmal bom citizen status.
16 We note that President Obama is not the first u.s. President bom of parents of differing
citizenship. Chester A. Arthur, the twenty-first U.s. President, was bom of a mother who was a United
States citizen and a father who was an hish citizen. See THOMAS C. REEVES, GENTLEMAN Boss, THE
LIFE OF CHESTER ALAN ARTHUR 3-4 (1975). During the election of 1880, there arose a 1111n01' "that
[Arthm] had been bom in Canada, rather than in Vennont as he claimed, and was thus constitutionally
ineligible to become the Chief Executive." Id. at 3. Although President A11hur's status as a natural bom
citizen was challenged in the 1880 Presidential Election on the grounds that he was bom in Canada rather
than Vennont, the argument was not made that because Arthm's father was an Irish citizen he was
constitutionally ineligible to be President. See generally id.
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not a citizen of the United States, he had children who were "natural-bom citizens of the
United States"), celi. denied 462 U.S. 1132, 103 S. Ct. 3112 (1983).
For the foregoing reasons, we affirm the trial COlui's grant of the Govelllor's
motion to dismiss.
Affilmed.
CRONE, J., and MAY, J., concur.
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EXHIBITD
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FILED
OSA! !
OFFICE OF STATE ADMINISTRATIVE HEARINGS
STATE OF GEORGIA
FEB 0 3 2012
DAVID FARRAR, LEAH LAX, CODY JUDY,
THOMAS MALAREN, LAURIE ROTH,
Plaintiffs,
v.
BARACK OBAMA,
Defendant.
DAVIDP. WELDEN,
Plaintiff,
v.
BARACK OBAMA,
Defendant.
CARL SWENSSON,
Plaintiff,
v.
BARACK OBAMA,
Defendant.
KEVIN RICHARD POWELL,
Plaintiff,
v.
BARACK OBAMA,
Defendant.
Valerie iZuJi'. Lc'gal Assistalll
Docket Number: OSAH-SECSTATE-CE-
I 21S136-60-MALTIHI
Counsel for Plaintiffs: Orly Taitz
Counsel for Defendant: Michael Jablonski
Docket Number: OSAH-SECSTATE-CE-
121S137-60-MALTIHI
Counsel for Plaintiff: Van R. Irion
Counsel for Defendant: Michael Jablonski
Docket Number: OSAH-SECSTATE-CE-
1216218-60-MALTIHI
Counsel for Plaintiff: J. Mark Hatfield
Counsel for Defendant: Michael Jablonski
Docket Number: OSAH-SECSTATE-CE-
I 216823-60-MALTIHI
Counsel for Plaintiff: J. Mark Hatfield
Counsel for Defendant: Michael Jablonski
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DECISION
l
Plaintiffs allege that Defendant President Barack Obama does not meet Georgia's
eligibility requirements for candidacy in Georgia's 2012 presidential primary election.
Georgia law mandates that candidates meet constitutional and statutory requirements for
the office that they seek. O.C.G.A. § 21-2-5(a). Mr. Obama is a candidate for federal
office who has been certified by the state executive committee of a political party, and
therefore must, under Georgia Code Section 21-2-5, meet the constitutional and statutory
qualifications for holding the Office of the President of the United States. Id. The United
States Constitution requires that a President be a "natural born [c]itizen." U.S. Const. art.
II, § 1, cl. 5.
As required by Georgia Law, Secretary of State Brian Kemp referred Plaintiffs'
challenges to this Court for a hearing. O.C.G.A. § A hearing was held on
January 26,2012 .. The record closed on February 1,2012. Plaintiffs Farrar, Lax, Judy,
Malaren, and Roth and their counsel Orly Taitz, Plaintiffs Carl Swensson and Kevin
Richard Powell and their counsel J. Mark Hatfield, and Plaintiff David P. Welden and his
counsel Van R. Irion, all appeared and answered the call of the case. However, neither
Defendant nor his counsel, Michael Jablonski, appeared or answered. Ordinarily, the
Court would enter a default order against a party that fails to participate in any stage of a
proceeding. Ga. Compo R. & Regs. and (5). Nonetheless, despite the
I This Decision has been consolidated to include the four challenges to President Obama's candidacy filed
by Plaintiffs David Farrar, et al., David P. Welden, Carl Swensson, and Kevin Richard Powell. Section I of
this Decision applies only to the case presented by Ms. Taitz on behalf of Mr. Farrar and his co-plaintiffs,
Leah Lax, Cody Judy, Thomas Malaren, and Laurie Roth, and does not pertain, in any way, to the cases of
Mr. Welden, Mr. Swensson, and Mr. Powell. Section II applies to all Plaintiffs.
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Defendant's failure to appear, Plaintiffs asked this Court to decide the case on the merits
of their arguments and evidence. The Court granted Plaintiffs' request.
By deciding this matter on the merits, the Court in no way condones the conduct
or legal scholarship of Defendant's attorney, Mr. Jablonski. This Decision is entirely
based on the law, as well as the evidence and legal arguments presented at the hearing.
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I. Evidentiary Arguments of Plaintiffs Farrar, et al.
Plaintiffs Farrar, Lax, Judy, Malaren, and Roth contend that President Barack
Obama is not a natural born citizen. To support this contention, Plaintiffs assert that Mr.
Obama maintains a fraudulently obtained social security number, a Hawaiian birth
certificate that is a computer-generated forgery, and that he does not otherwise possess
valid U.S. identification papers. Further, Plaintiffs submit that Mr. Obama has previously
held Indonesian citizenship, and he did not use his legal name on his notice of candidacy,
which is either Barry Soetoro or Barack Obama Soebarkah. (PI.s' Am. Compi. 3.)
At the hearing, Plaintiffs presented the testimony of eight witnesses
2
and seven
exhibits in support of their position. (Exs. P-l through P-7.) When considering the
testimony and exhibits, this Court applies the same rules of evidence that apply to civil
nonjury cases in superior court. Ga. Compo R. & Regs. 616-1-2-.18(1)-(9). The weight
to be given to any evidence shall be determined by the Court based upon its reliability
and probative value. Ga. Compo R. & Regs. 616-1-2-.18(10).
The Court finds the testimony of the witnesses, as well as the exhibits tendered, to
be of little, if any, probative value, and thus wholly insufficient to support Plaintiffs'
allegations.
3
Ms. Taitz attempted to solicit expert testimony from several of the
witnesses without qualifying or tendering the witnesses as experts. See Stephens V. State,
219 Ga. App. 881 (1996) (the unqualified testimony of the witness was not competent
evidence). For example, two of Plaintiffs' witnesses testified that Mr. Obama's birth
2 Originally, Ms. Taitz indicated to the Court that she would offer the testimony of seven witnesses.
However, during her closing argument, Ms. Taitz requested to testifY. Ms. Taitz was sworn and began her
testimony, but shortly thereafter, the Court requested that Ms. Tatiz step-down and submit any further
testimony in writing.
3 The credibility of witnesses is within the sole discretion of the trier of fact. In non-jury cases that
discretion lies with the judge. See Mustang Transp., Inc. v. W. W. Lowe & Sons, Inc., 123 Ga. App. 350,
352 (1971).
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certificate was forged, but neither witness was properly qualified or tendered as an expert
in birth records, forged documents or document manipulation. Another witness testified
that she has concluded that the social security number Mr. Obama uses is fraudulent;
however, her investigatory methods and her sources of information were not properly
presented, and she was never qualified or tendered as an expert in social security fraud, or
fraud investigations in general. Accordingly, the Court cannot make an objective
threshold determination of these witnesses' testimony without adequate knowledge of
their qualifications. See Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872 (1957) (for
the testimony of an expert witness to be received, his or her qualifications as such must
be first proved).
None of the testifying witnesses provided persuasive testimony. Moreover, the
Court finds that none of the written submissions tendered by Plaintiffs have probative
value. Given the unsatisfactory evidence presented by the Plaintiffs, the Court concludes
that Plaintiffs' claims are not persuasive.
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II. Application of the "Natural Born Citizen" Requirement
Plaintiffs allege that President Barack Obama is not a natural born citizen of the
United States and, therefore, is not eligible to run in Georgia's presidential primary
election. As indicated supra, the United States Constitution states that "[n]o person
except a natural born Citizen ... shall be eligible for the Office of the President ... .',4
U.S. Const. art. II, § 1, cl. 5.
For the purpose of this section's analysis, the following facts are considered: 1)
Mr. Obama was born in the United States; 2) Mr. Obama's mother was a citizen of the
United States at the time of his birth; and 3) Mr. Obama's father was never a United
States citizen. Plaintiffs contend that, because his father was not a U.S. citizen at the time
of his birth, Mr. Obama is constitutionally ineligible for the Office of the President of the
United States. The Court does not agree.
In 2009, the Indiana Court of Appeals ("Indiana Court") addressed facts and
issues similar to those before this Court. Arkeny v. Governor, 916 N.E.2d 678 (Ind. Ct.
App. 2009). In Arkeny, the plaintiffs sought to prevent certification of Mr. Obama as an
eligible candidate for president because he is not a natural born citizen. Id. at 681. The
plaintiffs argued, as the Plaintiffs argue before this Court, that "there's a very clear
distinction between a 'citizen of the United States' and a 'natural born Citizen,' and the
difference involves having [two] parents of U.S. citizenship, owing no foreign
allegiance." !d. at 685. The Indiana Court rejected the argument that Mr. Obama was
4 The definition of this clause has been the source of much debate. See, e.g., Gordon, Who Can Be
President of the United States: The Unresolved Enigma, 28 Md. L. Rev. 1 (1968); Jill A. Pryor, Note, The
Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years
of Uncertainty, 97 Yale L.J. 881 (1988); Christina S. Lohman, Presidential Eligibility: The Meaning of the
Natural-Born Citizen Clause, 36 Gonz. L. Rev. 349 (2000); William T. Han, Beyond Presidential
Eligibility: The Natural Born Citizen Clause as a Source of Birthright Citizenship, 58 Drake L. Rev. 457
(2010).
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ineligible, stating that children born within the United States are natural born citizens,
regardless of the citizenship of their parents. !d. at 688. This Court finds the decision
and analysis of Arkeny persuasive.
The Indiana Court began its analysis by attempting to ascertain the definition of
"natural born citizen" because the Constitution does not define the term. Id. at 685-86;
See Minor v. Happersett, 88 U.S. 162, 167 (1875) ("The Constitution does not, in words,
say who shall be natural born citizens. Resort must be had elsewhere to ascertain that.");
see also United States v. Wong Kim Ark, 169 U.S. 649 (1898) (noting that the only
mention of the tenn "natural born citizen" in the Constitution is in Article II, and the term
is not defined in the Constitution).
The Indiana Court first explained that the U.S. Supreme Court has read the
Fourteenth Amendment and Article II (natural born citizen provision) in tandem and held
that "new citizens may be born or they may be created by naturalization." Id. at 685
(citing Minor, 88 U.S. at 167); See U.S. Canst. amend. XIV, § 1. ("All persons born or
naturalized in the United States and subject to the jurisdiction thereof, are citizens of the
United States .... "). In Minor, the Court observed that:
At common-law, with the nomenclature of which the framers of the
Constitution were familiar, it was never doubted that all children born in a
country of parents who were its citizens became themselves, upon their
birth, citizens also. These were natives, or natural-born citizens, as
distinguished from aliens or foreigners. Some authorities go further and
include as citizens children born within the jurisdiction without reference
to the citizenship of their parents. As to this class there have been doubts,
but never as to the first. For the purposes of this case it is not necessary to
solve these doubts.
Id. at 167-68. Plaintiffs ask this Court to read the Supreme Court's decision in Minor as
defining natural born citizens as only "children born in a country of parents who were its
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citizens." 88 U.S. at 167. However, the Indiana Court explains that Minor did not define
the tenn natural born citizen. In deciding whether a woman was eligible to vote, the
Minor Court merely concluded that children born in a country of parents who were its
citizens would qualify as natural born, and this Court agrees. The Minor Court left open
the issue of whether a child born within the United States of alien parent(s) is a natural
born citizen.
Next, the Indiana Court looked to United States v. Wong Kim Ark, in which the
Supreme Court analyzed the meaning of the words "citizen of the United States" in the
Fourteenth Amendment and "natural born citizen of the United States" in Article II to
detennine whether a child born in the United States to parents who, at the time of the
child's birth, were subjects of China "becomes at the time of his birth a citizen of the
United States, by virtue of the first clause of the fourteenth amendment .... " Id. at 686
(citing Wong Kim Ark, 169 U.S. at 653). The Indiana Court detennined that the two
provisions "must be interpreted in the light of the common law, the principles and history
of which were familiarly known to the framers of the constitution." Id. (citing Wong Kim
Ark, 169 U.S. at 654). The Indiana Court agreed that "[t]he interpretation of the
constitution of the United States is necessarily influenced by the fact that its provisions
are framed in the language of the English common law, and are to be read in the light of
its history." Id. (citing Wong Kim Ark, 169 U.S. at 655) (internal citation omitted). The
Wong Kim Ark Court extensively examined the common law of England in its decision
and concluded that Wong Kim Ark, who was born in the United States to alien parents,
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became a citizen of the United States at the time of his birth.
5
Wong Kim Ark, 169 U.S. at
705.
5 The Wong Kim Ark Court explained:
The fundamental principle of the common law with regard to English nationality was birth
within the allegiance, also called "ligealty," "obedience," "faith" or "power," of the King. The
principle embraced all persons born within the King's allegiance and subject to his protection.
Such allegiance and protection were mutual . . . and were not restricted to natural-born
subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were
predicable of aliens in amity, so long as they were within the kingdom. Children, born in
England, of such aliens, were therefore natural-born subjects. But the children, born within
the realm, of foreign ambassadors, or the children of alien enemies, born during and within
their hostile occupation of part of the King's dominions, were not natural-born subjects,
because not born within the allegiance, the obedience, or the power, or, as would be said at
this day, within the jurisdiction of the King.
169 U.S. at 655.
It thus clearly appears that by the law of England for the last three centuries, beginning before
the settlement of this country, and continuing to the present day, aliens, while residing in the
dominions possessed by the Crown of England, were within the allegiance, the obedience, the
faith or loyalty, the protection, the power, the jurisdiction, of the English Sovereign; and
therefore every child born in England of alien parents was a natural-born subject, unless the
child of an ambassador or other diplomatic agent of a foreign State, or of an alien enemy in
hostile occupation of the place where the child was born.
[d. at 658. Further:
Nothing is better settled at the common law than the doctrine that the children, even of aliens,
born in a country, while the parents are resident there under the protection of the government,
and owing a temporary allegiance thereto, are subjects by birth.
!d. at 660 (quoting Inglis v. Trustees of Sailors' Snug Harbor, 28 U.S. (3 Pet.) 99, 164 (1830) (Story, 1.,
concurring». And:
The first section of the second article of the constitution uses the language, 'a natural-born
citizen.' It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language
of the constitution was used in reference to that principle of public law, well understood in
this country at the time of the adoption of the constitution, which referred citizenship to the
place of birth.
!d. at 662 (quoting Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 576 (1856) (Curtis, J., dissenting».
Finally:
All persons born in the allegiance of the king are natural-born subjects, and all persons born in
the allegiance of the United States are natural-born citizens. Birth and allegiance go together.
Such is the rule of the common law, and it is the common law of this country, as well as of
England.
!d. at 662-63 (quoting United States v. Rhodes, (1866) (Mr. Justice Swayne».
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Relying on the language of the Constitution and the historical reVIews and
analyses of Minor and Wong Kim Ark, the Indiana Court concluded that
persons born within the borders of the United States are "natural born
citizens" for Article II, Section 1 purposes, regardless of the citizenship of
their parents. Just as a person "born within the British dominions [was] a
natural-born British subject" at the time of the framing of the U.S.
Constitution, so too were those "born in the allegiance of the United States
[] natural-born citizens."
916 N.E.2d at 688. The Indiana Court determined that a person qualifies as a natural born
citizen if he was born in the United States because he became a United States citizen at
birth.
6
For the purposes of this analysis, this Court considered that President Barack
Obama was born in the United States. Therefore, as discussed in Arkeny, he became a
citizen at birth and is a natural born citizen. Accordingly,
CONCLUSION
President Barack Obama is eligible as a candidate for the presidential primary
election under O.e.G.A. § 21-2-5(b).
SO ORDERED, February 3
rd
, 2012.
~ c k J ~ . ~
MICHAEL M. MALIHI, Judge
6 This Court recognizes that the Wong Kim Ark case was not deciding the meaning of "natural born citizen"
for the purposes of determining presidential qualifications; however, this Court finds the Indiana Court's
analysis and reliance on these cases to be persuasive.
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EXHIBIT E
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Case 3:12-cv-00036-JAG Document 2 Filed 01/23/12 Page 1 of 3 PagelD# 47
CHARLES TISDALE,
Plaintiff,
v. Civil Action No. 3: 12-cv-00036-JAG
HONORABLE BARACK H. OBAMA, II, et aI,
Defendants.
ORDER
This matter is before the Court on the Motion to Proceed in Forma Pauperis and Financial
Affidavit filed by the plaintiff, Charles Tisdale, on January 17, 2012. Upon due consideration,
the Court finds that Mr. Tisdale is unable to pay the costs of proceeding in the instant case.
Accordingly, the Court grants Mr. Tisdale's Motion to Proceed in Forma Pauperis. For the
following reasons, however, the Court DISMISSES the Complaint with prejudice.
In proceedings in Forma Pauperis, the Court may dismiss the case at any time if the court
finds that the action fails to state a claim on which relief may be granted. See 28 U.S.C. §
1915( e )(2)(B)(ii); Eriline Co. S.A. v. Johnson, 440 F.3d 648, 656 (4th Cir. 2006).
When interpreting a pro se complaint, the Court must afford the complaint a liberal
construction. See Laber v. Harvey, 438 F.3d 404, 413 n.3 (4th Cir. 2006). The Court need not,
however, attempt "to discern the unexpressed intent of the plaintiff." ld The Fourth Circuit has
stated: "[T]hough [pro se] litigants cannot, of course, be expected to frame legal issues with the
clarity and precision ideally evident in the work of those trained in law, neither can district courts
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Case 3:12-cv-00036-JAG Document 2 Filed 01/23/12 Page 2 of 3 PagelD# 48
be required to conjure up and decide issues never fairly presented to them." Beaudett v. City of
Hampton, 775 F.2d 1274, 1276 (4th Cir. 1985).
Mr. Tisdale seeks an injunction enjoining the Virginia State Board of Elections from
certifying any candidate who lacks standing as a "natural born citizen" from appearing on the
ballot for the upcoming presidential general election on November 6, 2012. Specifically, Mr.
Tisdale cites Barack Obama, Mitt Romney, and Ron Paul as ineligible to appear on the ballot, on
the grounds that each had at least one parent who was not a citizen of the United States.
The Court rules that the Complaint does not state a claim upon which relief may be
granted. The eligibility requirements to be President of the United States are such that the
individual must be a "natural born citizen" of the United States and at least thirty-five years of
age. U.s. Const. art. II, § 1. It is well settled that those born in the United States are considered
natural born citizens. See, e.g., United States v. Ark, 169 U.S. 649, 702 (1898) ("Every person
born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the
United States."); Perkis v. Elg, 99 F.2d 408, 409 (1938). Moreover, "those born 'in the United
States, and subject to the jurisdiction thereof,' ... have been considered American citizens under
American law in effect since the time of the founding ... and thus eligible for the presidency."
Hollander v. McCain, 566 F. Supp. 2d 63, 66 (D.N.H 2008). Thus, Mr. Tisdale's contention that
President Obama, Governor Romney, and Congressman Paul are not eligible to be President due
to their nationalities is without merit.
Accordingly, the Court dismisses the Complaint for failure to state a claim. This
dismissal is with prejudice, as the Court finds that allowing leave to refile would yield the same
result, given the underlying premise of Mr. Tisdale's claim.
2
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Case 3:12-cv-00036-JAG Document 2 Filed 01/23/12 Page 3 of 3 PagelD# 49
Mr. Tisdale may appeal the decision of the Court. Should he wish to appeal, written
notice of appeal must be filed within thirty (30) days of the date of entry hereof. Failure to file a
timely notice of appeal may result in the loss of the right to appeal.
It is so ORDERED.
Let the Clerk send a copy of this Order to all counsel of record and Mr. Tisdale.
Date: January 20,2012
Richmond, VA
3
lsi
John A. Gibney, It
United States District J dge
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